57 S.C. 358 | S.C. | 1900
The opinion of the Court was delivered by
When this action was before this Court on appeal, 55 S. C., 450, great care was attempted to confine our judgment to the only matter which was then before the Court, viz: a demurrer to the defense set up in the answer of the Hartford Fire Insurance Company, that the
“IV. Because his Honor erred in not excluding the testimony of C. L. Smith, in reply, as to conversation with Judge Lyon concerning the foreclosure proceedings, upon the motion of Mr. King, it having been proven by the plaintiff’s testimony in chief, that he was a mere soliciting agent for appellant, and so far as the Norris policy was concerned, no agent at all, the policy having been delivered, the premium paid, and his full duties as agent having been discharged long before the conversation referred to.
“V. Because his Honor was in error in ruling upon appellant’s objection to the testimony of C. L^'Smith, in reply, as to the conversation with Judge Lyon about the Lawing v. Norris suit, that, ‘the statute makes him an agent of the company; he delivers the policy and collects and transmits the premium, and I hold that he is an agent, and I think that his evidence is competent,’ the said ruling being to the effect that sáid Smith was an agent with power to waive the stipulations of. the policy; whereas, it is submitted that the statute referred to by his Honor only makes him an agent for the company for the acts which he is authorized to do, and the acts incidental to such authority; the said statute having been intended to meet clauses in certain policies providing that persons soliciting insurance, delivering policies, adjust
“VI. Because his Honor should have held that, under the proof of the case, C. L. Smith was the agent of the company only for the acts which he was authorized to do, or which . were incidental to such authority, and should have held that, having performed all his duties with respect to the Norris policy, he was no longer the agent of the company, so far as her policy was concerned, and should have, on these accounts, excluded the testimony as to the conversation with Judge Lyon as to the foreclosure proceedings in Lawing v. Norris.
“VII. Because his Honor erred in allowing J. Fuller Lyon to testify in reply as to meeting and talking with C. L. Smith about foreclosure proceedings, it having been proven that C. L. Smith was no longer the agent of the appellant, so far as the Norris policy was concerned, and that he was without authority to waive the conditions of the policy pleaded as a forfeiture; and further, because the testimony of witness shows that the information was not given to Smith as agent of appellant, but in a casual way as to any other individual, and the same was not given by any one representing Mrs. Norris for that purpose.” The plaintiff sought to bring notice to the defendant of the commencement and pendency of the suit to foreclose the Lawing mortgage about 16th of August, 1896, more than five weeks prior to the fire which destroyed the house. Hence the offer of the testimony of Smith so as to show what one of the attorneys of Mrs. Norris told said Smith while he was the agent of the defendant insurance company, about the 16th August,' 1896, about the foreclosure suit. Was the said Smith only a soliciting agent for insurance for the defendant insurance company? It certainly was in evidence that Smith, although he took applications for insurance, did no.t countersign policies; this was done by Edgerton, in Atlanta, Georgia. But it was also in evidence that Smith, as said agent .for the defendant, did receive the premiums for
So far as the 7th exception is concerned, it is covered by our remarks in disposing of the exception just overruled, and it is overruled.
“XI. Because his Honor erred in not holding that all the testimony both for the plaintiff and the defendant shows that at the time of the fire the policy had been forfeited, and should have held that there was no competent testimony to go to the jury on the question of waiver, and on that account erred in not granting the nonsuit.
“XII. Because his Honor erred in refusing appellant’s motion for a nonsuit, the whole testimony both for the plaintiff and defendant showing the occurrence of acts constituting a forfeiture, and there being no competent evidence to go to the jury of a waiver of such forfeiture.” Since the case of Kingman v. Fire Ins. Company, 54 S. C., 599, which was intended to lay down the law relating to the right to
We have already held that appellant’s objections to some of this testimon3r being incompetent, were not tenable. Such being the case, there was competent testimony on the subject of waiver. These exceptions-as to nonsuit are overruled.
“XIII. Because his Honor erred in charging plaintiff’s first request to charge, which is as follows : ‘Any person who examines into or adjusts, or aids in adjusting, any loss for on behalf of any insurance company, not organized under or incorporated by the laws of this State, is the agent of the company for which the act is done,’ the said charge, in the light of the rulings already made by his Honor upon the statute, being to the effect that such person is an agent generally, when the manifest intention of the statute is to declare the person so acting as agent, the agent of the insurer, as contradistinguished from the insured, but only for the acts
“XVIII. Because his Honor erred in refusing the motion for a new trial in the case, it being submitted that the whole testimony shows that the policy had been forfeited at the time of the fire, and there being no competent evidence to support a waiver, and, therefore, no competent evidence to support the verdict rendered in the case by the jury.” This exception has already been passed upon.
It is the judgment of this Court, that the judgment of the Circuit Court be affirmed.